majority">The Surrogate.

The only disputed question upon this accounting arises under the third clause of the will of the testatrix, which is as follows:

“ Third. I give, devise and bequeath all the rest, residue and remainder of my estate, both real and personal of every name and nature, unto Albert F. Glad-ding, of the village of Norwich, New York, in trust for, and for the use and benefit of Louisa F. Follett, daughter of Samuel R. and Louisa Frances Follett, of the village of Norwich aforesaid, to take possession of the whole of said property and invest the same as he deems advisable and appropriate, and use the income thereof in his discretion for the education and support of said Louisa F. Follett until she arrives at the age of twenty-one years, and then to transfer, deliver and convey to said Louisa F. Follett all of said property, or the avails thereof, together with all increase or profit therefrom ; provided, however, said Louisa F. Follett shall have died at the time of my death, or shall die before arriving at the age of twenty-one years, I direct said trustee to transfer, deliver and convey to said Louisa Frances Follett all of said property or the avails thereof, together with all increase or profit therefrom, to be the property of said Louisa Frances Follett forever.”

As appears from the account rendered by Mr. Glad-ding he has only expended for the education and support of his cestui que trust since the death of the testatrix, which occurred March 16th, 1877, as follows :

SCHEDULE E.

“ A statement of all money paid by me to Louisa F. Eollett, the lega*64tee and cestui que trust named in said will, and of all moneys paid for her education and support:

October 19th, 1878—Paid M. 0. Griswold for musical instruction of Louisa F. Follett...................... $8.90

October 38th, 1877—Paid Mrs. S. B. Follett for the support and education of said legatee, by delivering to her for the use of said legatee the last fifteen items of personal property mentioned in said inventory at the inventoried price and value thereof....................119.50

138.40

. Excepting the above items, Mrs. Follett has wholly supported and educated her daughter since the death of the testatrix. It was conceded, upon the hearing, that Samuel R. Follett, the father, went into bankruptcy about the year 1876, and has been in embarrassed circumstances since that time, and was unable to support his daughter during the time the bill presented for her support was made.

In February, 1881, Mrs. Follett asked Mr. Gladding to pay her some money from the estate towards the support of her child, which he declined to do until after he should have a final settlement as executor, and the fund be thereby established. In September or October, 1882, Mr. Scofield, Mrs. Follett’s attorney, talked with Mr. Gladding about having an allowance made for the girl, but no allowance was made.

Upon this accounting, Mrs. Follett presents an account of $650, for five years’ board and maintenance of her daughter, and also an account of $240.35, assigned to her by her brother, John R. donkey, for money advanced by him, for the support, maintenance and edut cation of Louisa, and various bills paid by biwi for her clothing and tuition. And Mrs. Follett asks that the *65decree, to be entered upon this accounting, provide for the payment of these bills from the income of this trust fund.

It is conceded that these bills “are reasonable in amount, and the expenses therein stated have been incurred for the benefit of said infant in her support and education.” It is also conceded that the interest and income of this fund have been greater than the sums paid for the support and education of said infant.

The executor’ and trustee objects to the allowance of the claim upon two grounds : 1st. That, by the terms of the will he is invested with the discretion to use the income of the fund for the support and education of the infant, or, if he thinks proper, to refuse to use it, or any part of it, for that purpose; and that, believing as matter of fact, that the mother was able, and as matter of law obliged, to support her child, the father being unable, he has exercised his discretion by refusing to use the income of the fund for that purpose, and that the mother is bound by his decision. 2nd. That the law of this State compels the mother, the father not being able, to support and educate her children, and therefore she can prefer no legal claim as against the income of this fund, for expenses incurred by her in such support and education.

Title 6 of Chap. 18 of the Code of Civil Procedure confers upon Surrogates’ courts jurisdiction over the accounts óf testamentary trustees, to hear and determine all issues arising on accounting, accept his resignation, remove him for misconduct, etc., and appoint another in his place. This court now has in these matters all the powers of a court of equity, and the decree (§ 2813) *664 6 has the same force as a judgment of the Supreme court to the same effect.”

This proceeding is technically an accounting of Mr. Gladding not as testamentary trustee, but as executor, yet all the parties who can have any interest in the determination of the claim presented by Mrs. Follett are before the court, and have been fully heard upon the matter. The accounting, in fact, involves all that has been done as testamentary trustee, as well as executor, and § 2812 of the Code gives ample authority to pass upon this claim.

There is no fací in dispute, excepting as to the pecuniary ability of Mrs. Follett to educate and support her daughter. If my view of the law is correct, this question is not material, for I do not think a married woman is liable for the support and education of her children during the lifetime of her husband, except under the poor law, when the children are paupers. This statute is only intended for the indemnity of the public against the maintenance of paupers, and applies to children of any age.

The obligation to support and maintain infant children is by common law, and it requires the father to support his minor children if he be of sufficient ability, even though they have property of their own, but this common law obligation does not extend to the mother, and the rule as to the obligation of the father, when the infant has property, has in practice become considerably relaxed (2 Kent Com., 191,192; Tiffany and Bullard on Trusts and Trustees, 647, 648; 1 Jarm. on Wills [Randolph and Talcott's ed.] 702, 703).

Under the third clause of the will creating this trust, *67tlic “ discretion” of the trustee does not extend to the trust itself—to the giving or - withholding—but to the manner of giving.. The trust is imperative that the income of the fund be used for the purpose stated ; the particular manner in which it shall be used is discretionary. There is nothing in the language of the bequest to indicate that it is optional' with the trustee to use, or not to use, as he chooses.

The income of this fund is given as absolutely for the support and education of the infant during minority, as the principal is given to her when she becomes of age. The intimate relations existing between the testatrix and the Follett and Conkey families makes the language of this trust still more emphatic. She knew of the financial embarrassments of the father and his inability to properly support and educate his child, and to insure such support and education devoted the income of her entire estate to this object, and the principal absolutely, when she should reach majority.

Even where the rents and profits are directed to be accumulated for the benefit of infants entitled to the expectant estate, and they are destitute of other sufficient means of support and education, the Revised Statutes gave the Chancellor power to direct a suitable sum out of the rents and profits to be applied to their maintenance and education (3 R.S., 7th ed., 2179).

In the Matter of Burke infants (4, Sandf. Ch., 617) the Vice Chancellor thought it better to promote the permanent interest, welfare and happiness of the infants than to accumulate a surplus. In that case the father had received $35,000 life insurance on the life of his wife, but the court ordered an allowance to *68the father largely beyond the actual cost of the support and education of his infant daughters, payable out of trust property, the income of which was payable to their mother during life, and then to the children.

In the Matter of Kane (2 Barb. Ch., 375), it is held by the Chancellor that, in a proper case, the father will be entitled to an allowance for the past as well as future support of his infant children.

In Smith v. Geortner (40 How. Pr., 185), it is assumed" by the court, without discussing the question, that the father may be entitled to an allowance from the trustee for the past support of his infant children.

In the Matter of Bostwick (4 Johns. Ch., 100), the Chancellor ordered a reference to inquire as to the justice and truth of a mother’s charge for past support.

In Thompson v. Brown (4 Johns. Ch., 619), the widow, who was also the administratrix and guardian of her children, having received and applied rents and profits of her infant children’s real estate towards their support and education, it was held that she need not account for such rents and profits.

The case at bar is much stronger in favor of an allowance to the mother than that of Wilkes v. Rogers (6 Johns., 566), in which the Court of Errors reverse the decree of the Chancellor and hold that the mother, the father being dead, was entitled to an allowance out of the rents and profits of the infant children’s property for their past support and education, although she had a large separate estate.

The well considered opinions of Yates and Spencek, . *69J. J., sustained by the English authorities cited by them, are decisive of this case.

The decree to be entered must direct the payment of the bills of Mrs Follett, from the income of the trust fund.

Decreed accordingly.

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